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1.27.2012

Law Students & Gut Feelings

Law Students Need to Learn to Pay Attention to Their Gut Feelings and How that Will Help Discern What Course to Take in Different Scenarios that Arise in Practice

Law students need to know that, once they are practicing law, at times they will feel uncomfortable, a feeling in the gut that ought to get their attention. What they also need to know is that, at times, a lawyer’s duty to the client requires them to live with that uncomfortable feeling. All too often, however, that uncomfortable feeling is something that should lead them to reconsider the “means” by which they handle representation. Model Code of Professional Responsibility Rule 1.2 allows for the attorney to determine the means of accomplishing the client’s objectives. Too few law students and lawyers realize the degree of flexibility that Rule permits a lawyer to handle herself consistently with her value system—and in a way that is likely to build a reputation in the Bar, and among the judiciary, of which she can be proud.

An example of a situation in which one will feel uncomfortable but not be able to relieve that feeling is, for instance, when one has a friend who is an attorney. That friend, you know, will be filing suit against a client who has you on retainer to represent them on any matter that arises. What if that friend mentions that she's going to sue "next week before the statute of limitations runs" when you know that the SOL will run before that--in other words, you know your friend is mistaken on the SOL? Can you say anything to your friend? Absolutely not. Again, you'd be violating your duty to your client. So some situations are ones where lawyers have uncomfortable feelings but cannot sacrifice her client's rights.

What's an example in which one may have an uncomfortable feeling and be able to do something about it, so that the lawyer handles the “means” of litigation differently from an approach suggested by the client? Well, say your client is sued and your client asks you to delay the suit and to find anything you can to make it longer and "bleed" the other side of money. You look at the complaint and it states claims. You could file a motion for more definite statement challenging one paragraph in the complaint that you think is an arguably vague. Such a motion is typically considered a "responsive pleading" that will keep a client out of default. A hearing on the motion would have to occur before the case would proceed, so there would be delay such as your client wants. On the other hand, opposing counsel is going to know exactly what you're doing--"playing games.” Discovery is typically the means by which a party clarifies the details on which an opponent is pursuing a claim. Moreover, when you get to a hearing, a judge is going to see that you filed a motion for a more definite statement over one paragraph in a complaint that everyone can tell states claims. So the judge will likely see through your tactics too. Do you really want to become a lawyer known as a "hired gun" that will delay suits, play games with opponents, eat up the court's time just because you can? If your answer is "why not?,” consider some pragmatic reasons not to do this (for you and your client). The opposing counsel often will not be so reasonable with you if you treat her/him in this fashion. You also use up credibility with the court by such tactics, something that can hurt your client in this very case. Most importantly, you'll know that you're doing something -- to keep your client happy -- but which you know to be what's known as "sharp" lawyer (not “sharp” as in intelligent, but sharp as in sly). Are you compromising the value of honesty--filing a technical pleading to get delay, to force the other side to spend more money, rather than having a legitimate reason for forcing a hearing? Over time, will handling litigation in this fashion produce a reputation in the bar and among judges you don't want, one that won't serve you well in handling your cases? How will you think of yourself if you become the lawyer who milks a case for everything you can and forces an opponent to spend as much as possible? These are the kinds of things I hope your journal entries will explore.

9 comments:

It's still hard to think of not telling a friend that she is about to ruin her professional reputation. Understanding where the loyalties must be helps to resolve it somewhat, but I pray that I never find myself in that conversation. It would be so hard. But you're right. Sometimes that sickening feeling won't go away because doing the right thing is not easy. I keep reminding myself though that my first duty in that situation is to represent my client to the best of my ability, and that I would expect my friend to do the same with her client.

Of course, it is also interesting that our culture has slid so much toward doing "what feels right." This effectively means that we should seek to eliminate the uncomfortable feelings without questioning the value or the long term results. The discomfort in one's soul may be a warning against doing something in certain cases, but at other times, it is nothing more than discomfort at an awkward situation.

I think sometimes it will be hard to determine which gut feelings to listen to and which to ignore. I think it is very important to have a good mentor that you can go to. I think sometimes it takes someone with an objective opinion to recognize what the right course of action would be.

I have witnessed a "hired gun" attorney with a client who only wanted the other side to spend money because he knew he had no case. You are right. The judges see right through that behavior...not only of the client but of the attorney. This particular attorney has just that reputation...and no respect in the legal community. Her own greed caused her to make a bad business decision in taking the case. And in the end this attorney did not get paid! I suspect she got to that point by ignoring what she instinctively knew to do early in her career, so that became her norm. Ignoring the instinctual adds up. And has cost her dearly...in reputation and revenue.

Good point. And obviously something professor Madison has been teaching us well here at Regent. I agree with Elizabeth and Jessica, though, that we have to know when the gut feeling is right or wrong. Yes. We should always listen to it and evaluate it, but it may not always be right. Elizabeth is right-on that a mentor or wise counselor would be a great asset in these tough situations. Thanks for sharing!

Another point to consider is that gut feelings can become skewed over time if we consistently ignore them. Often times, that gut feeling is a barometer for whether something is ethical or not. Sometimes that feeling is just an intuitive sense of what to do. Other times, it is unexplainable. Many people can attest that if we repeatedly act contrary to that gut feeling, the gut feeling will not be as accurate and will weaken. It seems that many attorneys, and people in general, who find themselves in compromising situations or having committed a breach of responsibility with serious consequences, often wonder, "How did I get here?" Many times, the answer is ignoring gut feelings over and over until those feelings no longer occur.

Brandon, I completely agree. Part of the problem is the frog in the kettle phenomenon. People no longer start to feel the discomfort with what they are doing after they have done it several times. Therefore, actions that they would have never done early in their career become standard practice over time. The spirit of a man gets deadened and no longer responsive to that ‘still quiet voice’ or uncomfortable feeling in one’s heart/mind. More importantly, once people have made mistakes and dismissed/buried those uncomfortable feelings, they are more likely to continue down a wayward path. This is likely one of the reason why alcohol and drug abuse is so high in legal circles, compared with other professionals. The opportunity to cross ethical boundaries and the opportunities to ignore ones conscience occur so often in the law that it is very easy start down a dangerous and slippery slope. Over time, we can’t rely on our feelings when they have become deadened so we to develop other means of keeping ourselves accountable.

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Beyond the Rule is a blog recognizing that teaching a person to be a lawyer involves educating the whole person, and in particular assisting the law student to form a moral compass so that the student is more likely to develop a professional identity and practice law ethically.